The Use of Artificial Intelligence in Litigation

The use of artificial intelligence has become prevalent in all or almost all areas of business, government, science, healthcare, and entertainment. AI is a machine’s ability to learn from experience and perform cognitive functions that are human-like.

Attorneys are using AI in their practices to create documents, contracts, and deposition outlines, do legal research and discovery document review, and compose emails. Attorneys must take care, however, to ensure the accuracy of their work product when they use AI.

In a recent will contest in New York, Will of Samuel, 2024 WL 238160 (Surr. Ct., King’s County 2024), the will objector’s counsel submitted reply papers that contained citations to cases that were either erroneous or nonexistent, leading the court to believe that the attorney had relied on a website that contained information created by AI. The court began by saying:

Although the Court is dubious about using AI to prepare legal documents, it is not necessarily the use of AI in and of itself that causes such offense and concern, but rather the attorney’s failure to review the sources produced by AI without proper examination and scrutiny. In his haste to submit a response, Osborne’s attorney took no steps to ensure that the information and citations that he was presenting to the Court were legitimate and factual.

The court listed the harms that can result from the attorney’s failure to take the “minimal time and effort needed to cross-check this information”: 1) the opposing party wastes time and expense exposing the attorney’s deception; 2) the court’s time is taken from other endeavors; 3) the client may be deprived of arguments based on actual and real cases; 4) there is potential harm to the reputations of courts and judges whose names are falsely cited as authors of the fake opinions and to the reputation of a party attributed with fictional conduct; and 5) it promotes cynicism about the legal profession and judicial system in general.

The court found that the attorney’s conduct was frivolous because the reply contained false statements regarding the case law and court holdings. The court determined that the appropriate sanction “for committing this fraud upon the Court” was to strike the pleading from the record and to conduct a hearing as to whether economic sanctions against the attorney were warranted.

Although AI is constantly adapting and improving, and can be a useful legal tool, the above case and others recently published show that attorneys must not rely so heavily on AI that accuracy is sacrificed.